[Cite as State v. Curtis, 2019-Ohio-2587.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsRODNEY CURTIS 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. CT2019-0001 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum 

County Court of Common Pleas, Case 

No.CR2015-0117 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: June 26, 2019 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

D. MICHAEL HADDOX RODNEY A. CURTIS 

PROSECUTOR #A721-152 

BY: TAYLOR P. BENNINGTON Noble Correctional Institution 

ASSISTANT PROSECUTOR 15708 McConnelsville Road 

27 North Fifth St., P.O. Box 189 Caldwell, OH 43724 

Zanesville, OH 43701 
[Cite as State v. Curtis, 2019-Ohio-2587.]

Gwin, P.J. 

{¶1} Appellant Rodney A. Curtis [“Curtis”] appeals from the December 7, 2018 

Judgment Entry of the Muskingum County Court of Common Pleas overruling his second 

petition for post-conviction relief. 

Facts and Procedural History 

{¶2} Curtis was indicted on or about March 18, 2015, on 63 counts of Illegal Use 

of Minor in Nudity Oriented Material or Performance, each a felony of the second degree 

and 11 counts of Sexual Battery, each a felony of the third degree. He retained counsel 

to represent him. 

{¶3} On or about October 5, 2015, Curtis entered a negotiated plea guilty to 

counts 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 64, 68, and 74. In exchange for his plea, the state 

dismissed the remaining 61 counts. 

{¶4} On November 23, 2015, Curtis was sentenced to an aggregate prison 

sentence of eleven years1. Curtis did not file a direct appeal, though he attempted to file 

a delayed appeal on November 23, 2016. This Court denied Curtis’ motion to file a 

delayed appeal by Judgment Entry filed January 3, 2017 in Case No. 16-62. 

{¶5} On November 23, 2016, Curtis also filed a Petition for Post-Conviction 

Relief in the trial court. On February 13, 2018, the trial court issued a seven-page entry 

denying Curtis’ petition for post-conviction relief. This Court affirmed the trial court’s 

decision. State v. Curtis, 5th Dist. Muskingum No. CT2018-0014, 2018-Ohio-2822 

[“Curtis I”]. 

 1 Curtis received seven year sentences on Counts 2, 3, 5, 6, 9, 11, 12 and 13, concurrent to one 

another; Curtis received 48 month sentences each on Counts 64, 68 and 74, concurrent to one another, 

but consecutive to the seven year sentences. See, Judgment Entry filed Dec. 4, 2015, Docket Number 60. 
Muskingum County, Case No. CT2019-0001 3 

{¶6} On November 8, 2018, Curtis filed a Motion for Successive Post-Conviction 

relief. On December 7, 2018, the trial court overruled Curtis’ motion. 

Assignments of Error

{¶7} Curtis raises four Assignments of Error, 

{¶8} “I. APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT 

TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT 

RIGHT TO DUE PROCESS WHERE COUNSEL PREVENTED APPELLANT FROM 

DISCOVERING THE FACTS ABOUT A JOINT RECOMMENDATION PLEA OFFER OF 

SEVEN (7) YEARS THAT CHANGED THE OUTCOME OF THE PROCEEDINGS, AND 

PREVENTED APPELLANT FROM SERVING A LESSER PENALTY IN VIOLATION OF 

THE UNITED STATES AND OHIO CONSTITUTION, THUS, CAUSING APPELLANT TO 

ENTER A GUILTY PLEA THAT WAS LESS THAN KNOWING, VOLUNTARY, AND 

INTELLIGENTLY. 

{¶9} “II. APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT 

TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT 

RIGHT TO DUE PROCESS WHEN HE TOLD APPELLANT THAT HE "DOES NOT 

ALLOW HIS CLIENTS TO DO NO-CONTEST PLEAS, IT'S EITHER GUILTY OR NOT 

GUILTY. 

{¶10} “III. THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT IN 

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES AND OHIO CONSTITUTION DEPRIVING APPELLANT OF A FAIR 

TRIAL/PROCEEDING WHEN THE PROSECUTOR TOLD THE TRIAL COURT, AND 

COURT OF APPEALS, THAT THERE WAS "A JOINT RECOMMENDATION OF SEVEN 
Muskingum County, Case No. CT2019-0001 4 

(7) YEARS" DESPITE NO SUCH RECORD BEING IN EXISTENCE TO PERSUADE 

BOTH COURT'S TO DENY APPELLANT'S 2953.21. 

{¶11} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN 

IT DENIED APPELLANT'S 2953.21 PETITION DENYING APPELLANT DUE 

PROCESS.” 

STANDARD OF APPELLATE REVIEW - POST-CONVICTION RELIEF. 

{¶12} R.C. 2953.21(A) states in part, 

 (A)(1)(a) Any person who has been convicted of a criminal offense 

or adjudicated a delinquent child and who claims that there was such a 

denial or infringement of the person’s rights as to render the judgment void 

or voidable under the Ohio Constitution or the Constitution of the United 

States... may file a petition in the court that imposed sentence, stating the 

grounds for relief relied upon, and asking the court to vacate or set aside 

the judgment or sentence or to grant other appropriate relief. The petitioner 

may file a supporting affidavit and other documentary evidence in support 

of the claim for relief. 

{¶13} Although designed to address claimed constitutional violations, the postconviction relief process is a civil collateral attack on a criminal judgment, not an appeal 

of that judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905(1999); State 

v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67(1994). A petition for post-conviction 

relief, thus, does not provide a petitioner a second opportunity to litigate his or her 

conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the 
Muskingum County, Case No. CT2019-0001 5 

petition. State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819(1980). State v. Lewis, 

5th Dist. Stark No. 2007CA00358, 2008-Ohio-3113 at ¶ 8. 

{¶14} In State v. Gondor, the Ohio Supreme Court held that “a trial court's 

decision granting or denying a post-conviction petition filed pursuant to R.C. 2953.21 

should be upheld absent an abuse of discretion; a reviewing court should not overrule the 

trial court's finding on a petition for post-conviction relief that is supported by competent 

and credible evidence.” 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77(2006), ¶ 

58. In Gondor, the trial court held an evidentiary hearing on the petition for post-conviction 

relief. Id. at ¶19. The Supreme Court noted, 

 A de novo review by appellate courts would relegate the postconviction trial court to a mere testimony-gathering apparatus. Nothing in 

R.C. 2953.21 indicates that that should be the case. 

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 56. The court in Gondor held, 

 We thus conclude that proposition of law II has merit. The court of 

appeals erred by using a de novo standard of review in reversing the trial 

court’s findings. We hold that a trial court’s decision granting or denying a 

post-conviction petition filed pursuant to R.C. 2953.21 should be upheld 

absent an abuse of discretion; a reviewing court should not overrule the trial 

court’s finding on a petition for post-conviction relief that is supported by 

competent and credible evidence. 

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58 An abuse of discretion can be 

found where the reasons given by the court for its action are clearly untenable, legally 

incorrect, or amount to a denial of justice, or where the judgment reaches an end or 
Muskingum County, Case No. CT2019-0001 6 

purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit 

No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S.H., 9th Dist. Medina No. 

13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006–

CA–41, 2006–Ohio–5823, ¶54. 

I. 

{¶15} In his First Assignment of Error, Curtis maintains that he received ineffective 

assistance of trial counsel because his attorney prevented him from discovering a plea 

offer by the state of seven years. 

{¶16} In the case at bar, the trial court found, 

 In contrast, the record shows that his defense attorney requested 

and received discovery, negotiated with the Prosecutor’s Office for a plea 

deal with significantly less exposure and a joint recommendation of seven 

(7) years, fought to suppress evidence for his client, hired an expert to 

review the evidence, and argued at length on behalf of his client at 

sentencing. 

Journal Entry, filed Feb 13, 2018 at 4; Curtis I, ¶36 . In Curtis, I we noted, 

 Curtis was represented by retained counsel of Curtis’ choosing in the 

trial court. Curtis has not submitted affidavits or evidentiary materials to 

substantiate his claim that he and his attorney had any misunderstandings 

concerning the plea offer by the state as explained in open court by the trial 

judge. No affidavits or evidentiary materials were submitted to substantiate 

Curtis’ claim that his retained counsel coerced him to plead guilty. 

Curtis I, 2018-Ohio-2822, ¶29. 
Muskingum County, Case No. CT2019-0001 7 

{¶17} In Lafler v. Cooper the United States Supreme Court reiterated that the 

Sixth Amendment requires effective assistance not just at trial but at all critical stages of 

a criminal proceeding, including plea bargaining. 566 U.S. 156, 162, 132 S.Ct. 1376, 182 

L.Ed.2d 398 (2012). In order to prevail on a claim of ineffective assistance of counsel 

when counsel’s ineffective advice led to the rejection of a plea offer, the Court held that 

“a defendant must show that but for the ineffective advice, there is a reasonable 

probability that [1] the plea offer would have been presented to the court ...; [2] the court 

would have accepted [the plea];” and (3) the defendant was convicted of more serious 

offense or received a less favorable sentence than he would have received under the 

terms of the offer. Id. at 1385. 

{¶18} A trial court is not bound to follow a sentence that has been jointly 

recommended by the parties. See, State, ex rel. Duran v. Kelsey, 106 Ohio st.3d 58, 

2005-Ohio-3674, 831 N.E.2d 430, ¶6. Clearly, in the case at bar the trial court 

acknowledged the joint recommendation and chose not to follow it. 

{¶19} The petition, the documentary evidence, the files, the transcript and the 

records do not demonstrate that Curtis set forth sufficient operative facts to establish that 

the trial court would have sentenced Curtis to an aggregate sentence of seven years, or 

that the trial court was not advised of the joint sentence recommendation. 

{¶20} Curtis’ First Assignment of Error is overruled. 

II. 

{¶21} In his Second Assignment of Error, Curtis argues that he was denied 

effective assistance of counsel because trial counsel allegedly informed Curtis that 

counsel does not allow his clients to plead no contest. 
Muskingum County, Case No. CT2019-0001 8 

{¶22} Another proper basis upon which to deny a petition for post-conviction relief 

without holding an evidentiary hearing is res judicata. State v. Lentz, 70 Ohio St.3d 527, 

530, 639 N.E.2d 784 (1994); State v. Phillips, 9th Dist. Summit No. 20692, 2002-Ohio823. 

{¶23} Under the doctrine of res judicata, a final judgment of conviction bars a 

convicted defendant who was represented by counsel from raising and litigating in any 

proceeding, except an appeal from that judgment, any defense or any claimed lack of due 

process that was raised or could have been raised by the defendant at the trial, which 

resulted in that judgment of conviction, or on an appeal from that judgment. State v. 

Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following State 

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus. It is 

well settled that, "pursuant to res judicata, a defendant cannot raise an issue in a [petition] 

for post-conviction relief if he or she could have raised the issue on direct appeal.” State 

v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997). Accordingly, "[t]o survive 

preclusion by res judicata, a petitioner must produce new evidence that would render the 

judgment void or voidable and must also show that he could not have appealed the claim 

based upon information contained in the original record.” State v. Nemchik, 9th Dist. 

Lorain No. CA98CA007279, 2000 WL 254908 (Mar. 8, 2000), at 3; see, also, State v.

Ferko, 9th Dist. Summit No. 20608, 2001 WL 1162835 (Oct. 3, 2001) at 5; State v. Phillips, 

supra. The presentation of competent, relevant, and material evidence dehors the record 

may defeat the application of res judicata. See State v. Smith, 17 Ohio St.3d 98, 101, 

477 N.E.2d 1128, 1131–1132(1985), fn. 1. 
Muskingum County, Case No. CT2019-0001 9 

{¶24} Curtis’s argument was advanced in his first petition for post-conviction relief. 

See, Defendant’s Petition for Post-Conviction Relief Pursuant to R.C. 2953.12 & 2953.23, 

filed Nov. 23, 2016 at 9-11[Docket Number 63]. The claim is reiterated at paragraph four 

of Curtis’ affidavit attached to his first petition. [Docket Number 63 at 13]. 

{¶25} Curtis failed to assign this contention as error in Curtis, I. Because Curtis 

could have raised his argument in Curtis, l, it is barred in this proceeding by the doctrine 

of res judicata. 

{¶26} Curtis’ Second Assignment of Error is overruled. 

III. 

{¶27} In his Third Assignment of Error, Curtis maintains that there was 

prosecutorial misconduct involved regarding whether or not there was a plea offer of 

seven years. 

{¶28} This issue of a plea offer was addressed in our disposition of Curtis’ First 

Assignment of Error. Curtis has failed to set forth sufficient operative facts to establish 

that the trial court would have sentenced Curtis to an aggregate sentence of seven years, 

or that the trial court was not advised of the joint sentence recommendation. 

{¶29} Curtis’ Third Assignment of Error is overruled. 

IV. 

{¶30} In his Fourth Assignment of Error, Curtis argues that the trial court abused 

its discretion in overruling his successive petition for post-conviction relief. 

{¶31} A petition for post-conviction relief “shall be filed no later than three hundred 

sixty-five days after the date on which the trial transcript is filed in the court of appeals in 

the direct appeal of the judgment of conviction” challenged by the petition. R.C. 
Muskingum County, Case No. CT2019-0001 10 

2953.21(A)(2). Because “a court may not entertain a petition filed after the expiration of” 

that time period, “or a second petition or successive petitions for similar relief” by the 

petitioner, the restriction is jurisdictional. (Emphasis sic.) R.C. 2953.23(A)(1). State v. 

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 36. 

{¶32} The “limited gateway” of R.C. 2953.23(A)(1) provides “specific, limited 

circumstances” under which a court may hear a successive petition. Apanovitch at ¶ 22. 

Curtis’ petition required a showing of both of the following: 

 (a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner must rely to 

present the claim for relief, or, subsequent to the period prescribed in 

division (A)(2) of section 2953.21 of the Revised Code or to the filing of an 

earlier petition, the United States Supreme Court recognized a new federal 

or state right that applies retroactively to persons in the petitioner’s situation, 

and the petition asserts a claim based on that right. 

 (b) The petitioner shows by clear and convincing evidence that, but 

for constitutional error at trial, no reasonable factfinder would have found 

the petitioner guilty of the offense of which the petitioner was convicted or, 

if the claim challenges a sentence of death that, but for constitutional error 

at the sentencing hearing, no reasonable factfinder would have found the 

petitioner eligible for the death sentence. 

R.C. 2953.23(A)(1); State v. Conway, 10th Dist. Franklin No. 17AP-504, 2019-Ohio-2260, 

¶14. 
Muskingum County, Case No. CT2019-0001 11 

{¶33} Curtis has not demonstrated he was entitled to have the trial court review 

his successive petition for post-conviction relief because he did not satisfy both prongs of 

R.C. 2953.23(A)(1), as required for the trial court to have jurisdiction over his claims. 

{¶34} Curtis’s Fourth Assignment of Error is overruled. 

{¶35} For the forgoing reasons, the judgment of the Muskingum County Court of 

Common Pleas is affirmed. 

By Gwin, P.J., 

Hoffman, J., and 

Wise, John, J., concur